Reason in the Time of Trump’s Transgender Tweet: The Military Benefits of Fortifying Pro-Dignity and Anti-Discrimination Norms

Posted in: Military Law

With President Trump’s recent tweet banning transgender individuals from military service, the public debate has been swift and expansive. Commentary has focused on whether the tweet is lawful; whether it is an order; what discretion the military has to support its transgender troops and resist the tweet; and the harms to transgender individuals. One perspective that deserves more sustained attention, however, regards the benefits to the military of including transgender troops and the costs of rolling back an inclusive policy. Of course, should Trump lawfully order exclusion, officially assessing these costs and benefits might be relegated to future administrations. But given the current uncertainty of the status quo, a full accounting seems timely. And I conclude by suggesting some actions that might help reduce military costs even if the transgender ban moves forward.

The Problem of Enforcement

First and perhaps most obvious, are the high implementation costs of policing a transgender ban. Others have already noted the complications involved in separating the over 10,000 transgender troops currently serving. The 56 retired generals and admirals writing to oppose the transgender ban have also pointed out the dignity costs associated with excluding transgender individuals. Though closeted transgender individuals who fear being outed face the highest costs, those troops conflicted about turning in their compatriots as suspected transgender individuals also bear significant emotional costs—similar to those experienced under “Don’t ask, don’t tell” (DADT). The costs to those two groups are not merely individual harms, borne individually, but collective costs degrading the morale of the unit.

A less appreciated but potentially significant implementation cost is generated by the intersection of a transgender ban and anti-harassment policies. DADT fostered the practice of “lesbian baiting” in which women who rebuffed male advances or wished to complain of harassment or assault were faced with the risk of allegations of lesbianism and separation. One can easily imagine a similar dynamic in which an individual who seeks to rebuff unwanted sexual attention or to complain of harassment may be accused, correctly or not, of being transgender. Such “trans baiting” could deter some victims from coming forward and may lead to others being separated. While I don’t know whether such practice occurred during the period between the lifting of DADT and Obama’s policy allowing already-enlisted service members to serve openly, the highly salient nature of Trump’s position and his vocal opposition to transgender troops seems more likely to embolden such behavior than the old status quo.

The Value of Pro-Dignity Norms

Second, and perhaps less intuitive, is the value of reinforcing pro-dignity norms—not only for transgender individuals and for society, but for the military itself. Pro-dignity norms are essential to the proper conduct of the military’s primary roles. As I have written elsewhere, the laws of war and other professional norms allow troops who kill people to mentally distinguish themselves from murderers. One way the laws of war accomplish this troop-affirming service is by maintaining the humanity of the enemy. While the laws of war authorize killing the enemy, they also require that troops always treat the enemy humanely. Troops may not cause unnecessary suffering even to the enemy. Troops may not torture. Troops may not intentionally kill civilians. While some of these rules might have been rooted in reciprocity concerns, their expansion to non-international armed conflicts and other settings where the other side is unlikely to comply, as well as their hardening over time, are evidence of the pro-dignity perspective.

Anti-torture norms do not just protect the potential victims, they also protect the would-be torturer and prevent him from being forced to undertake a morally corrosive action. Pro-civilian norms do not just protect the potential victims, they protect the troops who have to live with their actions long after the conflict ends. Collectively, these pro-dignity norms reinforce the professionalism and the humanity of the troops themselves, a position held and promoted by none other than leading Administration officials National Security Advisor H.R. McMaster and Secretary of Defense James Mattis.

But how does the military’s need for a pro-dignity perspective relate to the transgender ban? History demonstrates that laws of war violations are much more common when troops view the enemy as others, as sub-human, as unworthy of dignity and respect. Similarly, abuses against civilians are more common when they too are seen as others, as less than, as expendable. While supporting trans-inclusion certainly does not immunize the military against dehumanizing the enemy, nor does humanizing the enemy necessarily entail a pro-trans inclusion perspective, the lesson of seeing all people as inherently deserving of dignity and fair treatment is one that can be reinforced across a variety of settings. Support for trans troops provides such an opportunity.

Transphobia, Homophobia, and Misogyny

If the cause-and-effect relationship just described seems too tenuous, consider instead the more direct effects of reaffirming shared humanity as well as anti-discrimination, and pro-inclusion norms on the women, gays, lesbians, and bisexuals who serve and who consider service in the future. Transphobia is rooted in the same heteronormative, patriarchal family of prejudices as homophobia and misogyny. The transphobic belief that everyone is born with one and only one sex and that their sex identity must match their sex organs is often part of a larger belief system that men must be gendered male, should only desire to have sex with women, and should embody male stereotypes of strength and aggression. That larger belief system also houses the mirror image beliefs that women must be gendered female, should only desire to have sex with men and should embody female stereotypes of weakness and passivity. When President Trump contends that allowing transgender service “erodes military readiness and unit cohesion,” he is providing the thinnest of fig leaves for the underlying discriminatory reasons that non-trans troops might not want to serve with trans troops. Affirming and reinforcing such discriminatory preferences and sex stereotypes inflicts costs on a military struggling to be more inclusive across the intersecting fronts of sex and sexual orientation.

Rather than excluding and expelling transgender troops, the military should be fortifying its anti-discrimination and pro-humanity norms. And should the transgender ban get implemented, doing so becomes even more important for the reasons described above. While the military is rightly lauded for desegregating troops and providing meaningful opportunities for people of color, one must not forget the widespread and virulent racism that black troops faced from their own military while in Vietnam. Such discrimination corroded the moral authority of the U.S. military, and it took a sustained commitment to improve conditions. Similarly, while the military has eliminated formal barriers for the full service of women, gays, and lesbians, mistreatment is still pervasive. Merely eliminating formal barriers is the first step, not the last.

Inclusivity Starts With Leadership

How can the military be more inclusive? Leadership on these issues matters. We see this in the action of the chairman of the Joint Chiefs of Staff Joe Dunford who refused to modify current policy without implementation guidance and his notice that “we will continue to treat all of our personnel with respect.” We see this with Coast Guard commandant Paul Zukunft who reached out to transgender troops to tell them he would not break faith with them. While these statements are vitally important, the military is deeply constrained in how it may speak publicly about the ban and would become even more so implementing guidance be issued. But leadership on issues of anti-discrimination and pro-inclusion for its female, gay, and lesbian troops is possible even in the face of a transgender ban. Such leadership might take the form of more active recruitment and promotion of women, lesbians and gays. It might also take the form of more sophisticated anti-harassment training, rather than current plans to cut such training back. It could also address those parts of military culture that foster an environment conducive to harassment and assault. The transgender troop ban might be inevitable, but all the more reason for the military to double down on pro-dignity, anti-discrimination, and pro-inclusion norms.

3 responses to “Reason in the Time of Trump’s Transgender Tweet: The Military Benefits of Fortifying Pro-Dignity and Anti-Discrimination Norms

  1. I do not see this as a solvable question, in some instances where the military personnel are not in drastic conditions it is not so different form corporate, like those working DC but where it counts, in battle I can see problems that can not be overcome by any cute social ideas. Think about having a very small contingent that gets isolated, no medical supplies including hormone medication. You have 10 persons, then 8 or 6. One of them is not able to think straight because of lack of medication or hormone medication. I separate the two to bring the attention to the fact that persons that thy to join with illnesses many times are refused for just the reason that it takes every person, all the time, without any possible problems. It is enough to take care of friends that are wounded and to think straight. It looks good to everyone back home to make military service a right but is not it is a privilege and if it is made a right one day that right may get your loved one or children or even grandchildren killed. I will ask is that worth being politically correct or is it better to be smart. It is each of our calls if asked. I know my call.

  2. Ted Harvatin says:

    This appears to be a political post masquerading as a law article, as I see zero case law or legal analysis. Curious as to what experience, training or education Wexler has to be commenting on military matters?

  3. Brett says:

    The purpose of the military is to protect Americans, such as Ms. Wexler, it is not to give a forum to men who would like to be women or women who would like to be men. A vast majority of folks with military experience support the transgender ban on military grounds. The policy is not discriminatory, a common cry of liberals when they do not have facts on their side.